IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
November 8, 2001
PEPSI-COLA BOTTLING COMPANY OF PITTSBURG, INC., PLAINTIFF,
PEPSICO, INC. BOTTLING GROUP L.L.C., DEFENDANTS.
The opinion of the court was delivered by: David J. Waxse United States Magistrate Judge
MEMORANDUM AND ORDER
Pending before the Court is Plaintiff's Motion for Reconsideration (doc. 128). Plaintiff requests that the Court reconsider its August 22, 2001 Order (doc. 121) in which the Court denied Plaintiff's oral motion to compel witness Gerard Casey to answer the deposition question inquiring into which documents he reviewed in preparation for his deposition.
On August 14, 2001, Plaintiff's counsel conducted the deposition of Gerard Casey, Vice President and General Counsel of Defendant PepsiCo., Inc. ("PepsiCo"). During the deposition, plaintiff's counsel asked Mr. Casey what documents he had reviewed in connection with his preparation for the deposition. Counsel for Defendant PepsiCo objected and instructed Mr. Casey to not answer on the grounds of attorney-client privilege. Counsel for Plaintiff telephoned the Court and asked the Court to compel Mr. Casey to answer the question. At the time of the conference call with the Court, neither party provided the Court with any relevant citations or law on the issue. The Court denied Plaintiff's oral motion to compel Mr. Casey to answer the question inquiring into which documents he had reviewed prior to his deposition for the reasons set out in Alexander v. Federal Bureau of Investigations, 186 F.R.D. 200, 203 (D.D.C. 1999).
A party filing a motion to reconsider must predicate such motion on: "(1) an intervening change in controlling law, (2) the availability of new evidence, or (3) the need to correct clear error or prevent manifest injustice." D. Kan. R. 7.3(b). The Court has broad discretion to grant or deny a motion to reconsider. Aetna U.S. Healthcare, Inc. v. Hoechst Aktiengesellschaft, 67 F. Supp.2d 1242, 1248 (D. Kan. 1999) (citing Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir. 1988)).
Plaintiff, apparently invoking the third ground for reconsideration of a non-dispositive motion under D.Kan. R. 7.3(b), requests that the Court reconsider its Order denying Plaintiff's oral motion to compel Mr. Casey to answer the question inquiring into which documents he had reviewed prior to his deposition. Plaintiff contends that the Court's ruling relying on Alexander, 186 F.R.D. at 203, is contrary to Audiotext Communications Network, Inc. v. U.S. Telecom, Inc., 164 F.R.D. 250 (D.Kan. 1996).
In Audiotext, 164 F.R.D. at 252, defendants objected to producing a bound notebook of documents its witness reviewed prior to his deposition. They argued that the documents contained within the notebook were privileged, and thus not discoverable, because the documents in the notebook were assembled by counsel in anticipation of litigation and reflected counsel's mental impressions. Id. Judge Rushfelt held that the "selecting and grouping of information" by counsel did not transform discoverable documents into work product. Id. The Court noted that defendant's previous production of all the documents contained in the notebook demonstrated the discoverability of the individual documents. Id.
In their response, Defendants contend the Court's ruling not permitting counsel to inquire into what documents the deponent reviewed prior to the deposition is correct and cite Aguinaga v. John Morrell & Co., 112 F.R.D. 671, 683 (D.Kan. 1986), in support of their argument that the process of selecting the documents a deponent reviewed prior to deposition is protected by the attorney opinion work product doctrine. Aguinaga also involved a similar situation in which counsel for a deponent objected, on the grounds of attorney-client privilege and work product doctrine, to a question inquiring what documents the deponent had reviewed prior to the deposition. Id. Judge Theis held that counsel's process of selecting documents for review prior to a deposition was protected by the attorney opinion work product doctrine. Aguinaga, 112 F.R.D. at 683-84.
To the extent that Audiotext and Aguinaga are inconsistent, the Court holds that Judge Rushfelt's more recent decision in Audiotext to be the appropriate basis for ruling in this matter. "The selecting and grouping of information does not transform discoverable documents into work product." Audiotext, 164 F.R.D. at 252. In making this determination, the Court finds the rationale set forth by Judge Seitz in his dissenting opinion to Sporck v. Peil, 759 F.2d 312, 319 (3rd Cir. 1985), cert. denied, 474 U.S. 903, 106 S.Ct. 232, 88 L.Ed.2d 230 (1985), to be persuasive
Plaintiff seeks the discovery of the identities of the documents that Mr. Casey reviewed prior to his deposition. These are objective facts and are not, in themselves, the opinion or thought processes of an attorney. Nor were the contents of the documents, all of which had already been produced, created by Defendant PepsiCo's attorney in anticipation of litigation.
Defendant PepsiCo argues that the identification of the documents examined by Mr. Casey prior to his deposition would reveal counsel's litigation strategy. Presumably, the argument is that if Plaintiff knew which documents were reviewed, it could draw conclusions as to why each document was chosen by counsel. As Judge Seitz stated in his dissenting opinion to Sporck:
The problem with [this] theory is that it assumes that one can extrapolate backwards from the results of a selection process to determine the reason a document was selected for review by the deponent. There are many reasons for showing a document or selected portions of a document to a witness. The most that can be said from the fact that the witness looked at a document is that someone thought that the document, or some portion of the document, might be useful for the preparation of the witness for his deposition. This is a far cry from the disclosure of the a [sic] lawyer's opinion work product. Even assuming that the documents were selected by the petitioner's attorney, the subject matter is so undifferentiated that its potential for invasion of work product is minuscule at best.
Based upon these reasons, the Court therefore holds that the rule that "selecting and grouping of information does not transform discoverable documents into work product" applies to a deposition inquiry relating to what documents a deponent reviewed prior to his deposition. If counsel is concerned about disclosing litigation strategy by the identification of the documents shown to a party-witness prior to the deposition, counsel could avoid such disclosure by simply altering his or her choices as to the documents selected for review.
Plaintiff's Motion for Reconsideration (doc. 128) of the Court's August 22, 2001 Order is therefore granted. Witness Gerard Casey is hereby ordered to answer the question inquiring into what documents he reviewed in preparation for his deposition.
IT IS SO ORDERED.
Dated at Kansas City, Kansas on this 8th day of November, 2001.
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